When is a healthcare facility liable for resident on resident assaults?

On September 26, 2008, the Nebraska Supreme Court made that determination in Marilynn Ehlers v. State of Nebraska, 276 Neb. 605 (2008).  In that case, a woman, Ehlers, was assaulted by another patient at the Hastings Regional Center.  Ehlers argued that the Regional Center had a duty to prevent the assault.  The Supreme Court disagreed setting forth the test as follows:

 

There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a)    a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or

(b)    a special relation exists between the actor and the other which gives to the other a right to protection.

 

                The Court clarified the test in a residential patient situation as:

 

One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor

(a)    knows or has reason to know that he has the ability to control the conduct of the third persons, and

(b)    knows or should know the necessity and opportunity for exercising such control.

 

                The Court ruled against Ehlers because there was no evidence that the “HRC staff knew or should have known that L.S. was about to harm Ehlers and therefore should have immediately taken action to protect Ehlers from L.S.”

 

 

Jeanelle R. Lust

jlust@knudsenlaw.com

 

www.knudsenlaw.com

 

 

Velazquez Linares v. U.S. 2008 WL 4838130 (1st Cir. 2008)

Sometimes a case is notable, not because of any legal principle espoused, but simply because it is very well- written. This case qualifies:

On February 10, 2006, plaintiff-appellant Maria Velázquez Linares slipped and fell while a patron at the post office in Cataño, Puerto Rico. Neither the details surrounding her fall nor the extent of her injuries and damages are germane to this appeal. Instead, we fast-forward to March 3, 2008, when the plaintiff sued the United States and others under the Federal Tort Claims Act, 28 U .S.C. §§ 1346(b), 2671-2680.

The plaintiff duly filed her paper complaint in the district court. The Clerk issued a notice on March 13 stating that the case was subject to the electronic case management system. That is relevant because the court had in place a standing order-Standing Order No. 1-providing in pertinent part that, in such cases, “parties shall promptly provide the Clerk with electronic copies of all documents previously provided in paper form.” The plaintiff did not furnish an electronic copy of her complaint. On March 24-three weeks after the commencement of the suit-the district court, acting sua sponte, dismissed the action without prejudice. The court at the same time fined plaintiff's counsel $150 as a sanction.

The plaintiff filed the complaint electronically five days later and moved for reconsideration. In that motion, her counsel explained that electronic filing had not been accomplished earlier because of a malfunctioning computer in his law office. Counsel attached a statement from a computer technician who verified the malfunction and related that he had been hired to repair the defect on March 22.

The district court denied the motion for reconsideration without comment on April 2. The next day, the plaintiff docketed a notice of appeal. The district court responded by issuing a nunc pro tunc electronic order noting that “even if counsel's computer malfunctioned, he waited too long to cure his noncompliance with Standing Order No. 1.”

[1] [2]We need not tarry. When a trial court is faced with a violation of a court order, it may choose from a “broad universe of possible sanctions.” Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir.2002). Each case is sui generis. Thus, in making the choice of a condign sanction, the court must give individualized consideration to the particular circumstances of the case. Id. We review the court's order for abuse of discretion. Id.

[3] Dismissal is among the most severe of sanctions, and it should not be imposed without good reason. See Young v. Gordon, 330 F.3d 76, 81 (1st Cir.2003) (explaining that “dismissal should not be viewed either as a sanction of first resort or as an automatic penalty for every failure to abide by a court order”). The district court in this case believed that dismissal was appropriate because the plaintiff had transgressed Standing Order No. 1. Under the totality of the circumstances, we find that conclusion problematic.

[4] Standing Order No. 1 does not provide a set time within which a party must furnish an electronic copy of a pleading previously filed in paper form. The order merely recites that the electronic copy shall be supplied “promptly.” That term has a protean quality; what is “prompt” in one person's mind may not be “prompt” in another's, and what is “prompt” in one set of circumstances may be laggardly in a different set of circumstances. Given this uncertainty, we think it ordinarily would require the passage of more time than elapsed here to warrant sua sponte dismissal, without prior notice, on such a ground. See Velázquez- Rivera v. Sea-Land Serv., Inc., 920 F.2d 1072, 1076 (1st Cir.1990); cf. Rosario-Díaz v. González, 140 F.3d 312, 315 (1st Cir.1998) (noting that “litigants have an unflagging duty to comply with clearly communicated case-management orders”) (emphasis supplied).

*2 The district court, of course, had two easily available alternatives. First, the court as an institution could have used a fixed time parameter in place of “promptly.” Second, the court in this case could have called the plaintiff's attention to Standing Order No. 1, demanded compliance within a specified time frame, and then taken action if that demand had gone unrequited. See, e.g., Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 4-5 (1st Cir.2002) (approving use of show-cause order in analogous circumstance). Here, however, the record on appeal contains no indication that the court afforded any forewarning of this sort to the plaintiff.^FN1

Were there aggravating circumstances, the situation might be more fluid. See, e.g., Cósme Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir.1987). But in this case, the record reflects none. For aught that appears, plaintiff's counsel is a first-time offender; there is not the slightest whiff of bad faith, contumacious conduct, or habitual procrastination on his part. Moreover, he presented a plausible justification for the failure to furnish an electronic copy of the complaint more celeritously-and the district court did not question the truth of this explanation.

Jeanelle Lust

jlust@knudsenlaw.com

www.knudsenlaw.com

Patient Safety & Abuse Act one Step Closer to Passing

The U.S. Senate Finance Committee gave unanimous approval to the Patient Safety & Abuse Prevention Act on September 10, 2008. Chairman of the Senate Special Committee on Aging, Herb Kohl, D-Wis., introduced the legislation on June 7, 2007. Senator Kohl urged swift action by the full Senate before it adjourns again.

The sponsors of the bill state it will address issues related to background checks, as employers are not always able to find out if an applicant has a history of patient abuse or violent crime. It would also expand a pilot program that was initially started in 2003 in seven states and create a background check system that screens job applicants at long-term care facilities.

Nebraska already requires screening, but in going nationwide, the system would coordinate abuse and neglect registries and law enforcement records from each state with the FBI’s national database of criminal history records. If the bill passes, a nursing home would be required to screen all persons applying for positions that have direct contact with patients and presumably negative findings from other states would be easily identified. Anyone with a conviction for a violent crime or substantiated findings of abuse would be disqualified from holding such a job.

If a nursing home fails to perform the screening or if it knowingly employed a disqualified person in a direct care position, it could face penalties, including exclusion from the federal Medicare and Medicaid programs.

A budget amendment setting aside $160 million over 3 years will fund the background screening. Senator Pete Domenici, R-N.M. and co-sponsor of the bill, stated that this piece of legislation is important in providing safe-guards to protect our elderly and disabled.

Tammy J. Schroeder

tjs@knudsenlaw.com

http://www.knudsenlaw.com/

WHAT TO DO WHEN AN EMPLOYEE REPORTS AN INJURY

 

            Sooner or later just about every employer will need to deal with a workers’ compensation injury; in other words, an injury that is alleged to be within the course and scope of employment.  The employee is under a statutory obligation to give notice of any claimed injury “as soon as practicable.”  However, that is loosely interpreted and if an employer is, for example, aware that an employee needs time off to go to a doctor for a particular condition, and it is a condition that could even potentially be work related such will likely be sufficient notice even though the employee has not made any specific statement that such condition is work related.  If there is any potential that such condition could be work related, it behooves the employer to inquire further.

            The following are some suggestions for employers when handling workers’ compensation claims:

1.     Train all employees that they have the obligation to notify their immediate supervisor if they have any type of injury while working.  The supervisor should make it a practice to document all such information in one central location so that if the question of whether notice was given, and what the notice consisted of, becomes an issue later, they can verify whether or not such a report was made without having to rely solely on memory.

2.     If the injury looks like it is at all significant, it would be wise to have one person designated as the individual the supervisors or employees should then notify.  Certainly this should be done if the injury may potentially require any doctor’s visit or medical treatment.  Having one person designated to receive all such reports is helpful as there are various documents to fill out and notifications to be made so it is difficult for numerous supervisors, who most likely rarely handle such matters, to be fully trained on what needs to be done.

3.     The person who is designated to receive this type of notification, should ascertain whether immediate medical care is needed and obtain such if necessary.  They should interview the employee and find out the following information:  what happened, when did it happen, the names of all witnesses, the precise symptoms, and the precise area of the body involved.  The last fact is important since injuries to the head and torso are compensated differently than injuries to an extremity.

4.     An accident report should be filled out by the designated person receiving the report after talking to the injured employee.  Such should be signed by the injured employee. 

5.     There is also a Rule 50 choice of physician form that needs to be presented to the employee before any medical treatment is sought if possible.  If such is not done, the employee is free to choose any physician they may want whether they have ever seen that doctor before or not.

6.     Notice of the injury should be given to the employer’s workers’ compensation insurer in accordance with the particular insurance policy. 

7.     The insurer will then be in a position to give guidance as to whether the employer or the insurer will fill out the required First Report of Alleged Occupational Injury or Illness.  This Report must be filed with the Workers’ Compensation Court within ten days of the date of the notice of injury.  The injured employee is not responsible for filing this report, rather it is the employer’s or insurer’s responsibility.

8.     It is best to keep an injured employee working within the physical restrictions given by the doctor, even if only at part-time light duty, if at all possible.  The temporary disability benefits that must be paid under workers’ compensation are less if this is done but even more importantly, it keeps the employee engaged with their co-workers and their work and generally helps make an eventual return to work at their regular job more likely.

Finally, if it appears that the employee will not be able to return to work after a workers’ compensation claim, the employer must proceed with caution before terminating the employment.  Nebraska is an “at will” state, which means that the employment relationship only lasts as long as both the employer and employee want it to continue and either is free to end it for any reason as long as it is not due to an improper reason such as age, gender, etc.  However, the Nebraska Supreme Court has determined the employee has a separate tort action outside of any workers’ compensation action that can be brought in district court if their employment was terminated, or they were demoted, because they filed a workers’ compensation claim.  Jackson v. Morris Communication Corp., 265 Neb. 423, 657 NW 2d 634 (2003); Trosper v. Bag ‘N Save, 273 Neb. 855, 734 NW 2d 704 (2007). Therefore, an employer that terminates employment or demotes an employee after a workers’ compensation claim is filed will need to be absolutely sure it is well documented that such was not due to the filing of the claim itself.  If the employer cannot accommodate permanent restrictions, there is no requirement under this retaliation case law that the employee continue on the payroll but it should be clearly documented that this is the reason for the termination for employment.  Litigation may well arise whenever an injured employee’s job is terminated in this situation, and even though the employer knows such was not done in retaliation for filing a workers’ compensation claim, there will need to be sufficient evidence to convince the trier of fact of that as well.

 

Shirley K. Williams

skw@knudsenlaw.com

www.knudsenlaw.com

 

Senate advances two bills of importance to Nursing Homes.

 

             Two bills , the Elder Justice Act, S. 1070 and the Patient Safety and Abuse Act, S. 1577,  passed the Senate committee charged with passing on the bills to the full Senate.  The House committees had previously advanced the bills.

The Elder Justice Act would make $777 million in federal money available to government agencies and community programs that handle elder-abuse issues, establish a program to improve forensic investigation of crimes involving elder abuse, and impose stricter requirements for reporting criminal violations by long-term-care facilities and their staffs.   The bill also would create a council to coordinate the response of federal, state and local agencies to incidents of elder abuse and an advisory board composed of experts to develop a multidisciplinary plan to prevent crime against the elderly.

      The Patient Safety and Abuse Act sets up a nationwide data base for background checks on staff employed in the Nursing Home industry.   The new nationwide system would coordinate abuse-and-neglect registries and law enforcement records from each state with the FBI's national database of criminal history records.   If the bill is adopted, a nursing facility must conduct background checks of all applicants for positions with direct access to patients before hiring them.  Nursing facilities that fail to conduct the screening or knowingly employ a disqualified person in a direct-care position would face penalties, including exclusion from participation in the federal Medicare and Medicaid programs.

 

 

www.knudsenlaw.com

 

with thanks to Andrews Nursing Home Reporter

 

The Guest Statute

If you are injured in an accident in which one of your relatives was driving, you should consult with an attorney about your ability to recover damages from the driver of the vehicle.  The guest passenger statute provides:

[t]he owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person related to such owner or operator as spouse or within the second degree of consanguinity or affinity who is riding in such motor vehicle as a guest or by invitation and not for hire, unless such damages is caused by (1) the driver of such motor vehicle being under the influence of intoxicating liquor or (2) the gross negligence of the owner or operator in the operation of such motor vehicle.

For the purpose of this section, the term guest is hereby defined as being a person who accepts a ride in any motor vehicle without giving compensation therefore but shall not be construed to apply to or include any such passenger in a motor vehicle being demonstrated to such passenger as a prospective purchaser.  Relationship by consanguinity or affinity within the second degree shall include parents, grandparents, children, grandchildren, and brothers and sisters.  Should the marriage of the driver or owner be terminated by death or dissolution, the affinal relationship with the blood kindred of his or her spouse shall be deemed to continue.

Neb. Rev. Stat. § 25-21,237 (Reissue 1995).

The guest passenger statute has been found by the Supreme Court of Nebraska to be constitutional.  See Le v. Lautrup, 271 Neb. 931 (2006).  Such constitutional challenge involved a challenge on the basis of due process, equal protection, and the special privileges and immunities clause of the Nebraska Constitution. Id. at 935. The court addressed the due process and special privileges and immunities challenges in short accord, but spent more time in addressing the equal protection challenge.  Id. at 935.  In finding that the state had a rational basis for enacting the statute, that of the prevention of family collusion and fraud, the Court referred to an Indiana Court of Appeals opinion.

[T]he legislature may have perceived a greater risk of collusive lawsuits among family members, than among mere acquaintances.  Also, a jury may be particularly inclined to indulge in the “Robin Hood” tactic of robbing from the “rich” insurance companies to give to the “poor” victims where the parties are from the same family.

Id. at 938.

Other than constitutional challenges, the litigation with regard to the application of this statute happens most often in the context of exactly what the term “gross negligence” means.  Gross negligence is a moving target.

It must be borne in mind, always, that no decision on gross negligence can constitute an absolute precedent in any other case.  Each case necessarily differs somewhat in its particular facts and circumstances, and in the composite which results from them.  A dissection of the individual facts may, therefore, be misleading, because, in the attempted segregation, part of their real significance may become lost.  While it may be regrettable that no perfect yardstick for measuring gross negligence has ever been devised, the numerous decisions, which the guest statutes have produced, seem rather clearly to demonstrate that this is as close to possible to come to a judicial solution.

Klundt v. Karr, 261 Neb. 577, 582, 624 N.W.2d 30, 34 (2001) (quoting Liston v. Bradshaw, 202 Neb. 272, 275 N.W.2d 59 (1979)).  The Court acknowledged that most of the cases brought under § 25-21,237 and its predecessor dealt with intoxication, speed, failure to maintain lookout, and failure to control.  See Klundt, 261 Neb. at 583-5, 624 N.W.2d at 34-5 (citing Larson v. Storm, 137 Neb. 420, 289 N.W.2d 782 (1940) (plaintiff’s complaint that defendant was driving too fast, coupled with accident occurring when defendant hit a cement pipe after failing to make a slight turn, left question as to gross negligence); Jennings v. Lowrey, 168 Neb. 831, 97 N.W.2d 345 (1959) (reasonable minds could differ as to whether defendant’s actions in driving in excess of 60 to 70 m.p.h. around a curve in the middle of the night, causing the car to leave the road and roll, was gross negligence); Demont v. Mattson, 177 Neb. 277, 196 N.W.2d 190 (1972) (it was a jury question as to whether defendant’s driving down a hill on a winding, narrow, and unlighted road at 50 m.p.h., missing a turn, a hitting an embankment was gross negligence); Jones v. Foutch, 203 Neb. 246, 278 N.W.2d 572 (1979) (gross negligence found when unlicensed motorcyclist accelerated to 20 m.p.h. over the speed limit, in heavy traffic, driving between lanes and between cars, finally resulting in an accident when he failed to slow down for a turn despite plaintiff’s warnings)).

Jeanelle Lust

jlust@knudsenlaw.com

www.knudsenlaw.com

 

The "hell or highwater rule"

Permission

In Barry v. Tanner, 547 N.W.2d 730 (Neb. 1996), the Nebraska Supreme Court held:

[W]here initial permission to use an insured vehicle has been given by one having proper authority to give permission to the person operating it at the time of the accident, for purposes of liability coverage, such operation is with the express or implied permission of the named insured, even though specific or express terms of the permission given were violated.

Id. 547 N.W.2d at 733-34.

In Tanner, the vehicle driven by Tanner struck another vehicle driven by Mosher and, as a result of the force of the collision, Mosher's vehicle struck Barry. Tanner was a self-employed auto body specialist who had been given the vehicle for some minor repair and paint work. Tanner used the vehicle to go out and get some dinner and was returning to his auto shop when the accident occurred. After obtaining a default judgment against Tanner, who was uninsured, Barry commenced a garnishment proceeding against the vehicle owner's insurer on the theory that the defendant was a permissive user of the vehicle. The district court did not agree and dismissed the proceeding. On appeal, the Nebraska Supreme Court noted that it had previously adopted the "initial permission rule." Such a rule "reflects the view that automobile liability insurance is for the benefit of the public as well as insureds." 547 N.W.2d at 733. The court further noted that its interpretation of the rule is most analogous to the "hell or highwater rule," which provides:

[I]f the vehicle was originally entrusted by the named insured, or one having proper authority to give permission, to the person operating it at the time of the accident, then despite hell or highwater, such operation is considered to be within the scope of the permission granted, regardless of how grossly the terms of the original bailment may have been violated .

547 N.W.2d at 733-34.  Accordingly, the court held that where a named insured gives permission to another to operate the insured vehicle, insurance coverage ought not depend on whether or not the operator is violating the conditions placed upon his use.

Jeanelle R. Lust

jlust@knudsenlaw.com

www.knudsenlaw.com